May v. May

• Citation: 829 S.W.2d 373
• Decision Date: 16 April 1992
• Docket Number: No. 13-91-266-CV,13-91-266-CV
• Parties: Robert A. MAY, Jr., Appellant, v. Susan Ann MAY, et al., Appellees.
• Court: Texas Court of Appeals

Page 373

829 S.W.2d 373

Robert A. MAY, Jr., Appellant, v. Susan Ann MAY, et al., Appellees.

No. 13-91-266-CV.

Court of Appeals of Texas Corpus Christi.

April 16, 1992.

W.A. Orr, Jr., Jill Cornelius, Bay City, for appellant.

Steven E. Reis, Charles Martinez, III, Bay City, for appellees.

Before DORSEY, KENNEDY, and GILBERTO HINOJOSA, JJ.

OPINION ON MOTION FOR REHEARING

DORSEY, Judge.

Upon consideration of the motion for rehearing filed in this case, we overrule the motion, withdraw our original opinion rendered January 30, 1992, and substitute the following opinion.

This is a divorce and child custody case in which custody of two minor children, Brandie Starr Hurrell and Krystale Gen May, was awarded to their maternal grandfather, William H. Hurrell, Jr., over the objection of appellant Robert A. May, Jr., their natural father. From the trial court's order granting divorce and awarding custody to Hurrell, appellant brings one point of error complaining that the trial court erred in failing to appoint appellant as managing conservator of his children. We affirm. ¹

The Texas Family Code provides generally that a parent shall be appointed as managing conservator unless the court finds that appointment of the parent would not be in the best interest of the children because it would significantly impair their physical health or emotional development. Tex.Fam.Code Ann. § 14.01(b)(1) (Vernon Supp.1991). By his sole point of error, Robert complains that the evidence was insufficient to show that his appointment as managing conservator would significantly impair his children's physical health or emotional development. We will treat the point as challenging both the legal and the factual sufficiency of the evidence.

In considering a "no evidence," "insufficient evidence" or "against the great weight and preponderance of the evidence" point of error, we will follow the well-established test set forth in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Co. v. Garza, 626 S.W.2d 120 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.); and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960).

Testimony at the November 13, 1990, divorce and custody hearing revealed that Susan Ann May and Robert May, Jr. began living together as husband and wife sometime in the early 1980s. Two children were born during their common-law marriage. Brandie Starr Hurrell was born in February 1984, and Krystale Gen May was born in July 1987. The parties acknowledged that Robert is the father of both children.

Susan and Robert separated in July 1988 after they were both arrested and convicted of drug-related offenses occurring in their home. Susan testified that both she and Robert were involved with using and selling illegal drugs out of their home while the children were present in 1988, and that she was convicted of the felony offense of delivery of marihuana, while Robert was convicted of the misdemeanor offense of possession. Susan further testified that Robert smoked marihuana, and that she does not think that the children would be safe or properly cared for if Robert had custody. Robert admitted that he has a 1988 conviction for possession of marihuana, but contends that the marihuana belonged to Susan and was merely in the house at the time. Robert also admitted that he used marihuana two years ago, but he claims that he has been clean and straight for the last two years.

Susan testified that both children have resided for the past year and a half with Susan's father in New York. Betty Kelone, Susan's mother and the children's maternal grandmother, who lives in Marksville, Louisiana, testified that she was appointed temporary managing conservator of the children on April 3, 1990, under temporary orders entered in the present suit. However, the children stayed with Kelone in Louisiana for only three months, during which Robert never visited them. Due to illness, Kelone then sent the children back to New York with a power of attorney authorizing William Hurrell, her ex-husband and the children's maternal grandfather, to enroll them in school and consent to any needed medical treatment.

William Hurrell testified that he has lived with the children for nearly two years and wants to retain custody. Hurrell, a stone cutter presently out of work due to disability, has lived for the past four years in a five-bedroom, two-story house, along with a woman who has three other children, ages twelve, thirteen and eighteen. Hurrell further testified that Robert May did not pay support for his children during the time they lived with Hurrell.

Robert May, Jr. testified that he called the children when they were in Louisiana with Kelone and at least once a month while they were in New York with Hurrell, but that he could not afford to visit the children in New York. Robert visited the children for only one week this year during the summer, and admitted that he has provided no support because he has been looking for a permanent job. Robert stated that he has held approximately five jobs in the past two years, but that he presently has worked for the past two weeks for a construction company for forty hours a week at $10.00 an hour. However, due to the nature of construction work, he is employed on a particular job only until it is finished, and then he must look for work on another job. Robert further testified that he has lived in a two-bedroom, two-bath apartment near playgrounds for the past two months, and that he made arrangements with a neighbor for the children to be taken care of while he is at work, if he were awarded custody.

After hearing the evidence, the trial court entered a final decree of divorce appointing Hurrell the sole managing conservator of the two children, and Susan and Robert as possessory conservators. The trial judge indicated that in making his decision about custody he was considering evidence admitted at a prior hearing on temporary conservatorship, as well as the evidence presented at the present divorce and custody hearing. We do not have a record before us of the prior hearing. However, we initially determine that any consideration by the trial court, or by this Court, of evidence presented at the prior hearing as grounds for determining custody following the present divorce and custody hearing would be improper.

Generally, a trial judge cannot consider testimony taken at a previous trial in a subsequent trial unless such testimony is admitted into evidence. Traweek v. Larkin, 708 S.W.2d 942, 946-47 (Tex.App.--Tyler 1986, writ ref'd n.r.e.); Muller v. Leyendecker, 697 S.W.2d 668, 675 (Tex.App.--San Antonio 1985, writ ref'd n.r.e.). Specifically, the trial court may not judicially notice testimony taken at a prior hearing in the same case with respect to temporary orders. See Continental Oil Co. v. P.P.G. Industries, 504 S.W.2d 616, 622 (Tex.Civ.App.--Houston [1st Dist.] 1973, writ ref'd n.r.e.); see also Garza v. Exxon Corp., 604 S.W.2d 385 (Tex.Civ.App.--San Antonio 1980, no writ); Hutcherson v. M & G Land Development Corp., 590 S.W.2d 520 (Tex.Civ.App.--San Antonio 1979, no writ).

Therefore, in the present case, the trial judge could not at the custody hearing take judicial notice of evidence formerly admitted at the hearing on temporary conservatorship. Cf. Robinson v. Risinger, 548 S.W.2d 762, 769 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.) (on rehearing). Neither will we take into consideration such evidence, or the lack of a record of such evidence, in determining whether there was sufficient evidence to support the trial court's judgment. We will review only the evidence admitted at the hearing on November 13, 1990, in determining if there is sufficient evidence to support the awarding of custody to the nonparent.

The presumption that the best interest of a child is served by awarding custody to a natural parent is deeply embedded in Texas law. Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.1990); Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex.1963). Family Code section 14.01(b)(1) reinforces that presumption in favor of parental custody and imposes a heavy burden on a nonparent seeking custody. The nonparent must prove that appointment of the parent would significantly impair the child, either physically or...